Sunday, June 3, 2018

No Moral Turpitude In Misdemeanor DUIs

The California State Bar Court Review Department declined to find that an attorney's drunk driving convictions involved moral turpitude.

Raj Tanden has three misdemeanor convictions (in 1990, 2012, and 2014) for driving under the influence (DUI) of drugs or alcohol. The latter two occurred while he was a member of the Bar, involved property damage to other vehicles, and are the subject of these proceedings.

...we find insufficient evidence of moral turpitude, but find it necessary to impose greater discipline than that ordered by the hearing judge. We base this finding on: (1) Tanden’s long history of alcohol and prescription drug abuse with no evidence of any sustained period of sobriety beyond the duration of his criminal probation; (2) his violation of probation; and (3) the harm he caused. We therefore recommend a one-year stayed suspension to protect the public and to maintain high professional standards.

In 2011

On May 27, 2011, Tanden drove while intoxicated with a BAC of between 0.115– 0.117 percent and caused a head-on collision. He had consumed two Black Russian cocktails aboard a flight from Washington, D.C. to Los Angeles. Upon landing, he retrieved his car from the airport parking lot, and drove home using side streets to avoid traffic. He was driving erratically down Whitworth Drive, a two-way street, when he veered into oncoming traffic, ran through a stop sign, and collided head-on with a vehicle driven by Lynne Callaghan (now Talarico). Both vehicles sustained damage, but no one was injured. Tanden did not immediately stop after impact. Instead, he drove about two blocks, turned the corner out of Talarico’s sight, and continued driving another quarter of a mile down Bedford Street. He then stopped his car in a red zone and waited for the police. The hearing judge found that, given Tanden’s impaired state at the time, he credibly does not remember other details of what happened.

Talarico pulled her car into a driveway on Whitworth Drive. A bystander told her where Tanden was and that he had hit another car. Based on this information, Talarico parked her car and walked to Bedford Street, where she saw Tanden’s damaged car stopped in the red zone along with another car.

Before the police arrived, a gathering crowd surrounded Tanden’s car. At least one person was “grabbing at him,” trying to take his keys away. Tanden became fearful, suffered an anxiety attack, exited his car, and ran across busy Olympic Boulevard to get away. When the crowd dispersed, he returned to sit in his vehicle and await the police. Upon their arrival, he was cooperative and candid, and he exchanged information with Talarico. Tanden was arrested and later convicted of DUI.

The court found insufficient evidence of an attempt to flee the scene.

In 2013

After an argument with Tanden on November 15, 2013, his wife announced she was moving out. She then left their home, leaving Tanden to care for their young son. Tanden took Xanax, a non-opiate drug that he had long been prescribed, to alleviate his anxiety, and later drove to the grocery store. Notably, he was still on probation for his 2012 DUI conviction, which prohibited him from driving with any measurable amount of drugs or alcohol in his system. On the way to the store, Tanden hit a parked car and failed to stop until the police pulled him over several blocks away. The other car, owned by Hector Rodriguez, sustained damage to the driver’s side rear panel and bumper. Tanden was arrested and later convicted of DUI.

At the time of his arrest, Tanden told the police officer that he had taken four to six 20- milligram Percocet tablets (an opiate), two Xanax pills, and something called “Relaxo.” Subsequent drug testing showed no alcohol or opiates in his blood, but did confirm the presence of Xanax. Tanden testified that he drove “in a haze” that day and was so impaired that he does not remember hitting the parked car or his statements to the officer. The officer’s report corroborates Tanden’s level of impairment and states that Tanden appeared to be “on the nod”— “a term used for persons who are under the influence of a narcotic analgesic which depresses vital signs resulting in subjects sometimes falling asleep and nodding their head.”

On moral turpitude

we agree with the hearing judge that the facts and circumstances surrounding Tanden’s misdemeanor convictions do not evidence dishonesty or other acts of moral turpitude.

But there remains a significant issue in his use of mood altering substances.

Despite his probation and his ongoing efforts to maintain sobriety, Tanden relapsed. In November 2012, he traveled to Boston to attend a four-day meeting of his law firm. Tanden did not attend the scheduled events, but instead spent the entire four days binge-drinking in his hotel room. When he went to the airport to return to California, he was so intoxicated that he was taken to a local emergency room. After returning home, he learned he had been terminated from his job.

A few days later, Tanden enrolled in an inpatient therapy program at Betty Ford Center, which he completed on December 12, 2012. Upon his discharge, he indicated that he would pursue his recovery efforts through outpatient therapy. The medical discharge summary listed his prognosis as “guarded.”

Approximately one year later, in November 2013, while still on criminal probation for his prior conviction, he drove while under the influence of prescription drugs (Xanax) and was again arrested for DUI. Thereafter, Tanden sought therapy at KLEAN, another residential program, where he began treatment with Alyson Albano (formerly Stack), a newly-licensed marriage and family therapist. He completed a 37-day inpatient program, and was discharged on December 19, 2013.

Tanden was able to maintain sobriety until May 2014. At that time, he and his wife formally separated, and his substance abuse issues recurred. He entered another inpatient program at Cliffside, where Albano was also affiliated. While there, he regained sobriety, which he has maintained up to and including the trial in this matter (approximately two years and 11 months).

He continues to see Albano on a regular basis, and he attends AA meetings and KLEAN alumni meetings. Tanden’s 60-month probation period from his 2012 DUI expired on February 28, 2017, approximately one month before trial in this case began.

The hearing judge credited Tanden with undertaking significant efforts at sobriety, which OCTC challenges on review. The judge found that Albano credibly testified that Tanden has completely changed his lifestyle. She further testified that he is actively involved in 12-step support groups, including having a sponsor, he has developed better coping skills, and his risk of relapse at this point is very low after nearly three years of sobriety. The hearing judge relied on this testimony and concluded that “[Tanden’s] prior problems are unlikely to lead again to misconduct.” Somewhat inconsistently, however, the judge also found that it was “premature” to give Tanden complete credit for overcoming his past alcoholism and substance abuse problems. The judge found that “enhanced caution” is particularly appropriate here since Tanden’s voluntary efforts at sobriety have failed, and the only evidence of successful rehabilitation is under court-monitored probation.

Confronted with these two conflicting views, we are left to our own independent evaluation. Although Tanden has taken positive strides to overcome his addiction, his efforts and success thus far have occurred primarily during his criminal probation. And although his therapist credibly testified that he is sober and at low risk for relapse, her focus on his personal recovery differs from our public protection role. We place greater emphasis on his period of sobriety without the oversight of the courts—which on this record is approximately one month.

Recommendation

We recommend that Raj Tanden be suspended from the practice of law in California for one year, that execution of that period of suspension be stayed, and that he be placed on probation for a period of two years subject to [conditions that include]

He must not drive any vehicle with any measurable amount of alcohol or drugs in his blood or refuse to take and complete any blood alcohol or drug chemical test, any field sobriety test, and any preliminary alcohol screening test, when request by any peace officer.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2018/06/the-california-state-bar-court-review-department-declined-to-find-that-an-attorneys-drunk-driving-convictions-involved-moral.html

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